Who is Accountable for the Covid-19 Spread?

As a member of the legal profession, my initial impulse was to consult the fundamentals of the social contract theory.

by Dr. Ruwantissa Abeyratne
Writing from Montreal

"One of the tests of leadership is the ability to recognize a problem before it becomes an emergency." Arnold Glasow

On 19 March 2020 Melissa Quinn, writing in CBS News an article titled Conservative lawyer sues Chinese government over coronavirus outbreak reported :“Lawyer Larry Klayman and his group Freedom Watch filed the complaint in federal court in Texas seeking at least $20 trillion from the Chinese government because of its "callous and reckless indifference and malicious acts."

Stephen L. Carter, writing in Bloomberg Opinion of 24 March an article titled No, China Can't Be Sued Over Coronavirus: Nation-states are immune from such lawsuits says:. “I wish I could join the groundswell of opinion demanding that China be held liable for allowing the coronavirus that causes Covid-19 to get out of control. The drumbeat includes, for example, a class action lawsuit filed in Florida last week and the argument that we should treat the outbreak as we would an act of terrorism, because under U.S. law, a country that sponsors terror can’t claim sovereign immunity... But I cannot…The government of China is protected by the doctrine of sovereign immunity, and the regime’s undoubted misconduct does not constitute sufficient grounds for a waiver”.

A practical (and dare I say proactive) view comes from an intelligent millennial (who will remain anonymous) who wrote to me yesterday: “Yes, China failed to contain the virus. But other world leaders have been completely incompetent in how they have handled this crisis. Trump knew that the coronavirus was a threat to public safety on a global scale for months and did nothing. He refuses to send out testing kits and protective gear that health care professionals desperately need, and now the US has become the biggest epicenter for the virus. Boris Johnson proposed letting people infect each other to develop a "herd immunity" (even though there is no scientific backing to indicate that people who had recovered from COVID-19 would develop an immunity to it). Spain made no preparations for it. Italy made no preparations for it. World leaders and politicians everywhere have made a complete mess of things. So why single out China?”

Of these two views, it is clear that the former is legal, and the latter is moral. However, both impute to the omissions or commissions that led to the global spread of the virus a certain moral reprehensibility. Carter has gone on to say in his article that “If you want to argue that the Government of China has behaved irresponsibly, that the country’s officials deserve the condemnation of the world for letting the novel coronavirus escape when early action could have kept it under reasonable control, you’ll get no argument from me” ascribing to the conduct of the Chinese leaders, denial, bluster and censorship.

As a member of the legal profession, my initial impulse was to consult the fundamentals of the social contract theory. The philosopher John Locke posited that life, liberty, and property are given to us by nature and shouldn't be taken away and that that people form governments in order to protect these rights, but in order for that to work, people have to follow the laws the government makes, which in turn ascribes to governments a certain responsibility to protect its citizens in return for adherence by the latter to laws promulgated by the legislature. However, my take is that whatever be the basis of the “blame game”, it all boils down firstly to a question of leadership. With this in mind, I have to turn the pages of history and go back to “originalism” to inquire into what the sages have said over the years.

To start with Plato, I go to his work “the Republic” where he says that people should be governed by philosophers who are endowed with wisdom and that leadership is a duty of philosopher kings who acquire the techniques and skills for the art of ruling. Plato’s pupil Aristotle is reported to have said: “Excellence is never an accident. It is always the result of high intention, sincere effort, and intelligent execution; it represents the wise choice of many alternatives – choice, not chance, determines your destiny” and that a leader should be what centuries later M.D. Arnold said: “A good leader leads the people from above them. A great leader leads the people from within them”. My final quote is from President Woodrow Wilson: “ You are not here merely to make a living. You are here in order to enable the world to live more amply, with greater vision, with a finer spirit of hope and achievement. You are here to enrich the world, and you impoverish yourself if you forget the errand." 

There are two dimensions to this discussion: the first is who is responsible?; and the second is who is accountable?” Responsibility is taking on the burden of a task. Accountability is paying for injury caused. The corporate analogy for the former is a manager who is responsible for delivering goods and services and the analogy for the latter is the chairman and board of directors. As for State responsibility, the International Law Commission in its Draft Articles on State Responsibility (2001) says: the basic principle underlying the articles as a whole is that a breach of international law by a State entails its international responsibility. An internationally wrongful act of a State may consist in one or more actions or omissions or a combination of both. Whether there has been an internationally wrongful act depends, first, on the requirements of the obligation which is said to have been breached and, secondly, on the framework conditions for such an act, which are set out in Part One. The term “international responsibility” covers the new legal relations which arise under international law by reason of the internationally wrongful act of a State.

So was there a breach of international law here? The International Court of Justice in the1964 Barcelona Traction case noted that: an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former is the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes (obligations to all).

Accountability, whether it is corporate or political is more individualistic. For example, any leader found in dereliction of duty towards the people he/she serves will have be accountable at the next election. Of course, this principle would apply only in a democracy.

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